Information Note on the Court’s case-law 27

February 2001

Lucà v. Italy - 33354/96

Judgment 27.2.2001 [Section I]

Article 6

Article 6-3-d

Examination of witnesses

Conviction on the basis of statements made by a witness relying on the right not to incriminate himself: violation

Facts : N. and C. were found in possession of cocaine and arrested. N. told the police that he and C. had gone to the home of the ap plicant, who had agreed to supply them with cocaine. N. was initially treated as a witness, but was later classed as a suspect and questioned by the public prosecutor as such. The applicant and C. were committed for trial on drug-trafficking charges; separ ate proceedings were instituted against N. for possession of drugs. N. was called to give evidence at the applicant’s trial as a “person accused in connected proceedings” but chose to remain silent as he was entitled to do under Italian law. As a result, t he applicant did not have the opportunity to examine him or to have him examined. The court noted that N.’s refusal to give evidence was lawful. It therefore availed itself of the possibility – deriving from the case-law of the Constitutional Court – of us ing the oral statements made by persons accused in connected proceedings. Consequently, the record of N.’s statements to the public prosecutor was read out at the hearing. The applicant was convicted and sentenced to more than eight years’ imprisonment and a fine. The court noted that the main evidence against the accused had been the statements made by N. to the public prosecutor. The applicant lost an ordinary appeal and an appeal on points of law, in both of which he had complained, inter alia , that ther e had been a breach of the adversarial principle. Although the relevant domestic legislation is currently being amended, the former rules continue to apply in trials that are already under way.

Law : Articles 6 § 1 and 6 § 3 (d) – Evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There may be exceptions to this principle, provided that they do not infringe the rights of the defence. Although it may be necessary to refer to depositions made during the investigation, particularly when the persons concerned refuse to repeat them in public owing to fears for their safety, the accused must have a proper opportunity to challenge such statements during the investigation or at his trial. Where a conviction is based solely or to a decisive degree on depositions made by a person whom the accused has had no opportunity to examine or to have examined, the rights of the defence are restricted to an extent that is incompatible with the requirements o f Article 6. The term “witness” used in Article 6 § 3 (d) has an autonomous meaning in the Convention system. The safeguards laid down by this provision apply to depositions made either by a co-accused or by a witness in the strict sense, in so far as such depositions may serve to a material degree as the basis for a conviction. In this case, the domestic court had relied solely on the statements made by N. before the trial, whereas neither the applicant nor his lawyer had been given an opportunity at any s tage of the proceedings to question him. The applicant had therefore not been given a proper opportunity to contest the statements on which his conviction had been based.

Conclusion : violation (unanimously).

Article 41: The Court refused to speculate as to what the outcome of the proceedings might have been if they had complied with Article 6. It therefore dismissed the claim for compensation of the damage caused by the applicant’s allegedly unfair imprisonment as a result of his conviction. It awarded a su m in respect of the non-pecuniary damage sustained and in respect of costs and expenses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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